Border Immigration Lawyer BlogBorder Immigration Lawyer Bloghttp://www.borderimmigrationlawyer.com/home/2015-01-27T21:39:26ZSquarespaceProposed border security bill could require biometric inspection of everyone leaving the U.S.http://www.borderimmigrationlawyer.com/home/2015/1/27/proposed-border-security-bill-could-require-biometric-inspec.htmlSarah E. Murphy, Esq.2015-01-27T21:36:11Z2015-01-27T21:36:11ZRead Article: GOP border bill stirs fears of bridge backups]]>Do I need a waiver to enter the United States?http://www.borderimmigrationlawyer.com/home/2014/11/11/do-i-need-a-waiver-to-enter-the-united-states.htmlSarah E. Murphy, Esq.2014-11-11T16:26:44Z2014-11-11T16:26:44ZQUESTION: I have never been to the United States but am concerned that I might require a waiver to enter the U.S. When I was 18, I was charged and convicted of Uttering Threats (indictable) to destroy real property of the RCMP. I was sentenced to 2 years probation. It was a case of not thinking before I spoke. It is the only conviction that I have ever had, and have not been in trouble since. I am 40 years old now. I really want to travel to the U.S. to visit some friends, but I am truly afraid to cross the border. I have heard stories about people getting in a lot of trouble. Do I need a U.S. entry waiver? Any help with this would be greatly appreciated.

REPLY: Thank you for your message. I am sorry to hear that you are afraid to cross the border. While I cannot provide you with case-specific information without first reviewing your case in detail, I can provide you with some general information that might be useful.

Under the Immigration and Nationality Act (“INA”) § 212(a)(2)(A)(i), any foreign national convicted of a crime involving moral turpitude is inadmissible to the U.S. and will require a waiver to enter. The term “moral turpitude” generally refers to conduct that is inherently base, vile, or depraved and contrary to the accepted rules of morality and duties owed between persons, or the duties owed to society in general. A crime of moral turpitude (“CIMT”) has been defined as an illegal act that is, in itself, morally reprehensible and intrinsically wrong as opposed to an act that is wrong simply because it is prohibited by law.

The test to determine whether a particular crime involves moral turpitude is

]]>Sixth Circuit Rejects BIA's Interpretation of INA 212(h)http://www.borderimmigrationlawyer.com/home/2014/9/26/sixth-circuit-rejects-bias-interpretation-of-ina-212h.htmlSarah E. Murphy, Esq.2014-09-26T17:51:49Z2014-09-26T17:51:49ZThe U.S. Court of Appeals for the Sixth Circuit issued a precedent decision that will allow a greater number of lawful permanent residents (LPRs) to avoid deportation if they can demonstrate to an immigration judge that their removal will result in extreme hardship to close family members in the United States.

With this decision, the Sixth Circuit joins the Third, Fourth, Fifth, Seventh, Ninth and Eleventh Circuits in holding that the bar to a waiver under § 212(h) of the Immigration and Nationality Act (INA) applies only to those persons with an aggravated felony conviction who became LPRs at the time that they lawfully entered the United States. The Court found that Congress specifically intended to preserve the waiver for those who adjusted to LPR status following their entry into the U.S. For many LPRs facing removal, the § 212(h) waiver is the only means to avoid separation from U.S. family members. The waiver under INA § 212(h) is applied for on Form I-601.

]]>Is there a culture of anti-Canadian, anti-immigrant attitudes among some U.S. Customs and Border Protection members?http://www.borderimmigrationlawyer.com/home/2013/9/30/is-there-a-culture-of-anti-canadian-anti-immigrant-attitudes.htmlSarah E. Murphy, Esq.2013-09-30T20:20:01Z2013-09-30T20:20:01ZRecent news articles discuss the attitude of U.S. Customs and Border Protection toward Canadian citizens at ports of entry:

]]>Unlawful Presence and Duration of Status (D/S)http://www.borderimmigrationlawyer.com/home/2013/9/13/unlawful-presence-and-duration-of-status-ds.htmlSarah E. Murphy, Esq.2013-09-13T19:57:53Z2013-09-13T19:57:53ZQUESTION: I am confused about my case. On 1 April 2003, I entered the US on an F1 visa. The border officer at the airport granted me admission for duration of status (D/S). My college term started 1 May 2003. That was exactly 1 month after entering and enrolling into my college course. Due to my lack of interest in the study subject I discontinued going to classes a within month. That is, I attended classes for only a month.

Instead of departing from the US or changing the study subject, I decided to stay and took a job. After consulting an immigration lawyer I realized that the proper thing to do for me was to depart back to my country, which I did on the 19 August 2004. After I left the US for home (the Netherlands), I inquired myself of the consequences of my actions. I realized that I might have triggered the 3 or 10 year entry bar. I've never applied for a visa again, ever since, nor have I tried to enter the US/cross the border, since I have left. I know that if the 10 years bar applies to my case that would mean that by 19 August 2014, the entry bar should expire. But I am not sure of this since on the internet I have found information stating the difference between out-of-status and unlawful-presence and that D/S on an F1 student visa may have different meanings and consequences in comparison to other visa types.

Having granted D/S status on my F1 visa on 1 April 2003, but then having dropped out of school 1 to 2 months afterwards, followed by staying in the US until voluntarily departing back home on 9 August 2004, have I triggered any entry bar and if that's the case which of the two entry bar applies?

REPLY: Thank you for your questions. While I cannot provide you with advice specific to your case without first reviewing it in more detail, I have provided some general information below.

Individuals who are admitted to the U.S. as F1 students for the duration of status (“D/S”) do not begin to accumulate unlawful presence unless/until there is an official finding that the student has fallen out of status by either an Immigration Judge or U.S. Citizenship an Immigration Services (“USCIS”). The act of dropping out of school alone does not begin the accumulation of unlawful presence.

If an individual is subject to a formal finding that s/he has fallen out of F1 student status, the unlawful presence clock begins as of that finding. If the individual departs the U.S. within six (6) months of the finding, s/he is not subject to a bar for unlawful presence. If s/he departs the U.S. after six (6) months but before one (1) year after the finding, s/he is subject to the three (3)-year bar. If s/he departs the U.S. more than one (1) year after the finding, the 10-year bar applies.

I hope this information is helpful.

]]>Do I have a 5-year bar to the U.S.?http://www.borderimmigrationlawyer.com/home/2013/6/18/do-i-have-a-5-year-bar-to-the-us.htmlSarah E. Murphy, Esq.2013-06-18T20:36:41Z2013-06-18T20:36:41ZQUESTION: Six months ago, I was asked to withdraw my application to enter the U.S. and my B1 visa was cancelled. I was told to apply for a different visa. Then, a month ago I received a job offer from a company in the U.S. I applied for a TN visa, which I didn't get because I did not fulfill the necessary requirements and was told to apply for a different working visa. My question is, do I have a 5 year bar? No one is telling me so. I'm told to reapply for a different visa, but never that I'm inadmissible.

REPLY: Thank you for your question. While I cannot provide you with case-specific advice without first reviewing your case in detail, I can provide you with some general information that may be useful.

Permission to withdraw an application for admission does not, in itself, carry any bar to future admission. In some instances, however, the individual granted permission to withdraw his/her application for admission is also charged with a ground of inadmissibility at the time of withdrawal and, therefore, may be inadmissible on such grounds (i.e., criminal grounds; unlawful presence; fraud). Many grounds of inadmissibility carry with them a bar to admission for which a waiver is required (if available). If the individual has been issued an order of expedited removal, which is different than a withdrawal of application for admission, then s/he is subject to a 5-year bar.

]]>Do I need to reapply for the I-212 waiver?http://www.borderimmigrationlawyer.com/home/2013/2/6/do-i-need-to-reapply-for-the-i-212-waiver.htmlSarah E. Murphy, Esq.2013-02-06T21:53:07Z2013-02-06T21:53:07ZQUESTION: I am Canadian and was expedited removed from the U.S. and charged with fraud in 2010. I later filed Form I-192 and Form I-212. Both were approved. Form I-192 was approved for one year and is expiring soon. The Form I-212 approval letter does not have an expiration date. My question is, do I need to reapply for a new I-212 waiver in addition to a new I-192?

REPLY: Thank you for your question. You should not need to file a new I-212 application. In most cases like yours, permission to reapply for admission is granted for the remainder of the period of inadmissibility. Since you have been charged with fraud, you will require a nonimmigrant waiver [Form I-192] for life. If you would like to discuss your case in more detail and receive a complete professional analysis, please do not hesitate to contact me.

]]>New Report on Border Patrol Practices in Upstate New Yorkhttp://www.borderimmigrationlawyer.com/home/2013/1/30/new-report-on-border-patrol-practices-in-upstate-new-york.htmlSarah E. Murphy, Esq.2013-01-31T00:30:44Z2013-01-31T00:30:44ZA new report from Families for Freedom in collaboration with New York University (NYU) Immigrant Rights Clinic entitled, “Uncovering USBP: Bonus Programs for United States Border Patrol Agents and the Arrest of Lawfully Present Individuals” reveals crucial information about the incentives and consequences of USBP practices. Using detailed new data from the USBP station in Rochester, New York and the Buffalo Sector that were obtained through a Freedom of Information lawsuit, the report reveals the existence of various incentive programs provided to Border Patrol agents in their quest to apprehend individuals of color, many of whom have legal status. The report also documents the broad array of persons with lawful status who suffer at the hands of USBP.

]]>Can I apply for B1/B2 visa while I am in the U.S.?http://www.borderimmigrationlawyer.com/home/2012/12/19/can-i-apply-for-b1b2-visa-while-i-am-in-the-us.htmlSarah E. Murphy, Esq.2012-12-19T21:19:16Z2012-12-19T21:19:16ZQUESTION: I work as a stewardess on a yacht and I require a B1/B2 visa. I have a letter from the captain which confirms this. Currently I am in the U.S and I arrived on an ESTA from the U.K. and will be leaving shortly for Costa Rica. I am staying in Costa Rica for a few months, so I will not really need the visa until I return for work BUT my question is - Can I apply for a B1/B2 visa while I am in the U.S.? And can I get my interview in Costa Rica?

REPLY: Thank you for your message. Since I have not reviewed your case in detail, the statements herein are for informational purposes only. My research indicates that you should be able to apply for a visitor visa at the U.S. Consulate in San Jose, Costa Rica. Since you are not a citizen or resident of Costa Rica, it appears that you must make your appointment through the Call Center that has been established for that specific Consulate. More information is available at http://costarica.usembassy.gov/consnonimmigrant.html

There is no problem if the DS-160 form is completed while you are in the U.S. – this form is online and can therefore be completed anywhere. Since the application will not be adjudicated until you are at the Consulate in Costa Rica, the date of arrival should not be listed as any date prior to the interview. Thus, the intended date of arrival should be the next date on which you expect to return to the U.S. after the interview in Costa Rica.

If you would like to submit additional information about your case and receive a complete professional analysis, please consider contacting my office to set up a consultation.

]]>Is TN available after expedited removal?http://www.borderimmigrationlawyer.com/home/2012/10/19/is-tn-available-after-expedited-removal.htmlSarah E. Murphy, Esq.2012-10-19T17:50:09Z2012-10-19T17:50:09ZQUESTION: I am a Canadian citizen and was issued an order of expedited removal. There was no fraud charge. I now have a 5 year ban. Is a TN work visa still an option for me?

REPLY: Thank you for your question. As you know, individuals who are issued orders of expedited removal are inadmissible to the U.S. for a period of five (5) years [assuming there is no fraud]. During that five-year period, the individual may apply for permission to reapply for admission into the U.S. This application is made by filing Form I-212 and supporting documents with the Department of Homeland Security. When/if the Form I-212 application is approved, a Canadian citizen may then apply for admission in TN status prior to the expiration of the five-year bar.

If you would like to submit additional information about your case and receive a complete professional analysis, please consider contacting my office to set up a consultation.